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Roldan v. Montgomery

United States District Court, S.D. California

June 28, 2019

IVAN ROLDAN, Petitioner,
v.
WARREN L. MONTGOMERY, Warden, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 9]

          Hon. Ruben B. Brooks, United States Magistrate Judge.

         Ivan Roldan, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 against Respondent Warren L. Montgomery, Warden of Calipatria State Prison [ECF No. 1]. On February 20, 2019, Respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus [ECF No. 9], with an attached Memorandum of Points and Authorities [ECF No. 9 Attach. #1], and a Notice of Lodgment [ECF No. 10]. Petitioner did not file an opposition. For the reasons set forth herein, the Court RECOMMENDS that Respondent's motion to dismiss be GRANTED and the petition be DISMISSED with prejudice.

         I. FACTUAL BACKGROUND

         Petitioner was convicted of murder, three counts of attempted murder, and assault with force likely to produce great bodily injury in 1997. (Not. Lodgment Attach. #1 [Legal Status Summary], at 1, ECF No. 10.)[1] He was sentenced to a prison term of seventy-nine years to life with the possibility of parole. (Id.)

         The following factual summary is taken from Correctional Lieutenant P. Zills's July 18, 2016 report:

On Monday, July 18, 2016, at approximately 1115 hours, Officer D. Acosta (A5 Floor Officer #1) and Officer R. Dubbe (A5 Floor Officer #2) were conducting a search of cell A1-235, jointly assigned to Inmate ALDANA (P28828, A1-235L) and Inmate ROLDAN (K57092, A1-235U). During the course of the search, Officer Acosta discovered a bindle wrapped in paper and clear plastic. Upon opening the bindle there were numerous other bindles containing black tar like substance. Officer Acosta took the bindles to the Sub-Evidence Room #430-144 for weighing and testing. Officer Acosta then relinquished the bindles to Officer J. Manning (Facility 'A' Security Officer #2) for testing of the substance, which tested positive for Heroin. There were a total of 11 individual smaller bindles within the one bindle discovered, with a total weight of 5.47 grams with packaging. [¶] In addition to the discovery of the suspected controlled substance[, ] Officer Dubbe discovered a cellular telephone.
Officer Manning, after testing the substance, approached Inmate ALDANA with the results of the testing. Inmate ALDANA refused to accept the results from the Narcotics Identification Kit (NIK) Test. [¶] Officer Manning, after testing the substance, approached Inmate ROLDAN with the results of the testing. Inmate ROLDAN refused to accept the results from the NIK Test. [¶] Officer Manning ordered both inmates to submit urine samples for testing for the presence of a controlled substance[;] both inmates refused to submit urine samples for testing. [¶] CAL Medical Staff completed a medical evaluation on Inmate ALDANA and Inmate ROLDAN.

(Not. Lodgment Attach. #2, In re Roldan, No. S245962 (Cal. Sup. Ct. [filed Dec. 13, 2017]) (petition for writ of habeas corpus), at 21, ECF No. 10.) Prison officials charged Petitioner with violating section 3016(a) of Title 15 of the California Code of Regulations for "Possession of a Controlled Substance for Distribution (Heroin)" and issued a Rules Violation Report ("RVR"). (Id. at 23, 43-47.)

         Senior Hearing Officer J. Coronado conducted a disciplinary hearing on September 18, 2016. (Id. at 49.) He noted that Roldan had received all pertinent documents, including a preliminary copy of the RVR, within the requisite deadlines, but the hearing did not take place within thirty days of the issuance of RVR. (Id. at 39, 49.) The hearing officer accordingly found a due process violation resulting from not meeting the thirty-day time requirement and determined that Roldan would not be assessed any loss of credits. (Id. at 49, 57.)[2]

         Petitioner called his cellmate, Victor Aldana, as a witness at the hearing. (Id. at 57.) Upon questioning by Petitioner, Aldana testified that the contraband found in the cell belonged to him and that Roldan was not aware of it. (Id.) Aldana also stated that he had purchased the drugs three days prior to the cell search, kept the drugs in a coffee jar in his locker for personal use, and used drugs daily. (Id.)

         Petitioner was questioned by the hearing officer and testified as follows:

Q Whos[e] drugs were found in your cell?
A My cellies [sic], I had no knowledge there were drugs till the cops told me.
Q Do you have priors for drugs?
A No.
Q Did you know your cellie is a drug user?
A Yes.
Q How long did you live with your ...

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